Court File and Parties

COURT FILE NO.: 069/09

DATE: 20090928

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: cranberry area residents & ratepayers association v. ministry of natural resources

BEFORE: Justice D. Aston

COUNSEL: Rodney V. Northey, for the Moving Party

Sara Blake, for the Respondent

HEARD AT TORONTO: September 22, 2009

E N D O R S E M E N T

[1] On May 25, 2007, the Ministry referred Capital Paving’s application for a licence for aggregate removal to the OMB under s.11(5) of the Aggregate Resources Act.

[2] After attaining party status, CARRA brought a motion to contest the jurisdiction of the Board. The grounds were characterized as: failures by the Ministry in vetting the pre-referral process regarding notice and public consultation; misinformation to the Board concerning objectors to the license application; and the expiry of a two year “limitation period”. The referral was also challenged as premature, having regard to the necessary Planning Act steps and the legislative requirement in the Aggregate Resources Act that a licence approval not be contrary to a zoning by-law. CARRA’s position is that there are “conditions precedent” to the Board’s jurisdiction.

[3] In April, 2008, before CARRA’s motion was heard by the Board, the licence application was withdrawn by Capital Paving. Consequently, the Minister withdrew the referral and the Board closed its file.

[4] The relief sought in the January, 2008 motion had become moot, but rather than trying to renew its motion to address the costs of that motion, CARRA brought a second motion (after the Board had closed its file) seeking costs it incurred while the proceeding was before the Board. It did not seek costs for the period predating the referral on May 25, 2007.

[5] The Board held it had no jurisdiction to award costs in these circumstances. CARRA brings this motion for leave to appeal that decision.

[6] Section 96(1) of the OMB Act provides that “an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law”. The test for leave is well settled by the jurisprudence:

“Leave to appeal should be granted if the [proposed appellant] can demonstrate that the Board’s decision raises a question of law that is of sufficient importance to warrant the attention of the Divisional Court and that there is some reason to doubt the correctness of the decision. Doubt as to correctness must be based on the totality of the decision and the Board’s order and when considering leave to appeal some measure of defence commensurate with the degree of independence and expertise of the Board is required.”

[7] Counsel for CARRA has identified cases under other legislation when the Board has reviewed “conditions precedent” to a valid hearing as part of its process. He submits proper public notice and consultation, accurate information to the Board and observance of the two year time frame are conditions precedent to the referral to the Board. However, the Aggregate Resources Act has its own peculiar, if not unique, provision for a referral to the Board. Significantly, the Board’s jurisdiction only arises if the Minister chooses to make a referral under s.11(5) of the Act. Under s.11(9) of the Aggregate Resources Act an application need not be referred to the Board and the Minister may decide herself whether to issue or refuse to issue the licence. The Minister may grant a license without any referral, conditionally or otherwise. It is also significant that in the referral under s.11(5) the “Board shall determine only the issues specified in the referral”.

[8] S.11(6) of the Act provides that the parties to a hearing can be expanded beyond those persons who made objections to “such other persons” as are specified by the Board. This alleviates the need to delve into the consultation and pre-referral process because it gives any interested party the opportunity to participate in a hearing on merits of the licence application, whether an objector or not.

[9] In my view, the Board correctly held in this case that it did not have jurisdiction to review the issues set forth in CARRA’s motion of January, 2008. The Board correctly decided that under this particular legislation it had “no authority or jurisdiction to adjudicate over the administration of AROPS [“Aggregate Resources of Ontario: Provincial Standards, version 1.0”] prior to the referral to the Board, or to dismiss a Minister’s referral on the grounds that the AROPS standard is flawed”. The Board also correctly concluded, again based on the particular provisions of this legislation, that the discretion of the Minister as to the timing of the referral meant the Board had no jurisdiction to refuse consideration of the licence application. On the terms set out in the Minister’s letter of referral in this case the Board’s jurisdiction was limited to directing the Minister to either issue the licence (with or without conditions) or to refuse to issue the licence.

[10] The motion for leave to appeal is dismissed.

[11] Counsel for the respondent asked for costs fixed in the amount of $1,000.00 if successful. So ordered.

Aston J.

DATE: September 28, 2009